Commissioner of Inland Revenue v Nicholson HC Whangarei CIV-2010-488-573

[2010] NZHC 2377

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2010-488-573

IN THE MATTER OF     THE INSOLVENCY ACT 2006

BETWEEN  OF THE BANKRUPTCY OF LA REE ANNETTE NICHOLSON

A Debtor

ANDTHE COMMISSIONER OF INLAND REVENUE

A Creditor

Hearing:         (on papers)

Counsel:         M B Smith for the Creditor

Judgment:      8 December 2010 16:45:00

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 8 December 2010 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties:

Mr M B Smith, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Whangarei

Ms LRA Nicholson, Old Valley Road, Okaihau, Northland

THE COMMISSIONER OF INLAND REVENUE V NICHOLSON HC WHA CIV-2010-488-573 8 December

2010

[1]      The bankruptcy notice in this proceeding was served on the debtor on 13

September 2010.   Accordingly, in terms of s 17 of the Insolvency Act 2006, the debtor, Ms Nicholson, had until 27 September 2010 to comply with the notice or otherwise challenge it as required by the Act and the High Court Rules.

[2]      On 27 September 2010 two documents were lodged with the Whangarei registry. These documents have just been referred to me.

[3]      One of these documents is described as “notice of counterclaim”.  It purports to be filed in this Court “on behalf of” Ms Nicholson by Ngati Kura Maori Incorporation; it has not been tendered for filing by Ms Nicholson personally or by a solicitor.  The document records that Ngati Kura Maori Incorporation on behalf of Ms Nicholson:

… will file a counterclaim application against a bankruptcy notice:

upon the grounds

1.that by resolution of the whanau/hapu la ree nicholson [sic] may pay any taxes, rates, fines or any other levies to any maori incorporation or marae where the land remains  of the native title.

2.that the court did not allow this to be put forward in the district court proceeding in which the order or judgement was obtained.

3.that the court did not allow the agent nominated by la ree nicholson to put forward any customs and usages of the whanau/hapu

4.that maori and ngati kura Maori incorporation [sic] have not adopted the insolvency act 2006 or the tax administration act.

5.that la ree nicholson is a legal, beneficial and equitable owner of the unextinguished native title

this notice is made in reliance on;

the declaration of independence 1835:

british crown te tiriti o Waitangi intention standing orders in council 1839:

te tiriti o Waitangi 1840:

section 5 te ture whenua maori maori [sic] land act 1993 section 5 maori incorporations constitution regulations 1995

high court of appeal decision ngati apa vs attorney general 2003:

[4]     The second document purports to be an affidavit in support of the “counterclaim”.   However, although on the face of it it has been signed by Ms Nicholson, it has not been sworn or affirmed as an affidavit.

[5]      If the significant irregularities in and related to the documents are left to one side, it is clear that the requirements of s 17(1)(d)(ii) and (7) of the Insolvency Act

2006 are not met.  These documents do not disclose a counter claim, set-off or cross demand.   Why that is so is self evident from the content of the “notice of counterclaim” which I have recorded in full above.   The document signed by Ms Nicholson  adds  nothing  to  the  “notice  of  counterclaim”.    The  second  limb  of s 17(7)(b)  is  also  not  met  because  the  documents  themselves  record  that  the purported  cross  claim  was  one  sought  to  be  raised  in  the  District  Court.   The complaint is that it was rejected.

[6]      The irregularities in the documents also mean that there are no grounds for setting aside the bankruptcy notice.   The Court will accommodate irregularities in documents where they can properly be accommodated to avoid injustice.  However, the  irregularities  here  go  beyond  that.    An  affidavit  is  mandatory.    None  was tendered.  The documents were not tendered by a person entitled to file documents in Court; that is to say, by the debtor in person or by a solicitor.  The time limit of 10 working days in s 17 and the bankruptcy notice is a strict time limit.  Documents in proper form and otherwise meeting the requirements of the Act and Rules were not and have not been filed in time.

Result

[7]      The debtor’s notice is dismissed.

Peter Woodhouse J